Wimberly v. MacLaren

• Decision Date: 13 September 2019
• Docket Number: Civil Case No. 18-11953
• Parties: WILLIE LEE WIMBERLY, Petitioner, v. DUNCAN MACLAREN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

WILLIE LEE WIMBERLY, Petitioner, v. DUNCAN MACLAREN,¹ Respondent.

Civil Case No. 18-11953

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

September 13, 2019

Honorable Linda V. Parker

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS; GRANTING A CERTIFICATE OF APPEALABILITY; AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Willie Lee Wimberly ("Petitioner"), through attorney S. Allen Early, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his Michigan state court convictions for two counts of assault with intent to commit murder in violation of Michigan Compiled Laws § 750.83. For the following reasons, the Court is denying the petition.

I. Background

Petitioner was convicted following a jury trial in the Circuit Court for Wayne County, Michigan. The Court recites verbatim the relevant facts from the Michigan Court of Appeals' opinion:

Defendant was convicted of aiding or abetting the shooting assaults of Brendon Charles and Seylon Dudley during the early morning hours of January 1, 2013, in an apparent road-rage incident after Charles and Dudley left the MGM Grand Casino in Detroit. Charles and Dudley left the casino in a Range Rover driven by Charles. Defendant, who had also been at the casino, was driving a Ford Expedition with two passengers, one of whom was Steven Smith-Rush ("Rush"). After an altercation between the drivers of the two vehicles while leaving the casino, the Expedition followed the Range Rover onto the I-94 freeway, eventually pulled alongside the vehicle, and then multiple gunshots were fired from the Expedition into the Range Rover. Charles and Dudley were both struck by gunfire.

Defendant and Rush were arrested later in January 2013, but Rush was initially charged only with accessory after the fact. Charles was murdered the day before a joint preliminary examination for defendant and Rush was to be held on January 30, 2013. When the preliminary examination ultimately concluded in April 2013, defendant was bound over for trial on two counts of assault with intent to commit murder and one count of felony-firearm. The district court found insufficient credible evidence to add assault charges against Rush, but bound Rush over for trial on charges of accessory after the fact and giving a false statement to the police. Rush later entered a guilty plea to the latter charge. Defendant testified at trial and admitted driving the Expedition when his passengers fired gunshots into the Range Rover, but argued that he was merely present in the vehicle, was unaware that his passengers intended to fire gunshots into the Range Rover, and did nothing to aid or assist the passengers in the shooting assault of the two victims. The prosecution presented evidence linking defendant to an attempt to bribe Charles if he did not testify at the preliminary examination, and linking him to Charles's murder the day before the scheduled preliminary examination. Thejury convicted defendant of two counts of assault with intent to commit murder, but acquitted him of the felony-firearm charge.

People v. Wimberly, No. 321490, 2015 WL 6161545, at *1 (Mich. Ct. App. Oct. 20, 2015). These facts are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F. 3d 410, 413 (6th Cir. 2009)

The Michigan Court of Appeals affirmed Petitioner's conviction and sentence on direct appeal. Wimberly, 2015 WL 6161545. The Michigan Supreme Court denied Petitioner leave to appeal. People v. Wimberly, 890 N.W. 2d 974 (Mich. 2017).

Petitioner asserts the following grounds in support of his request for federal habeas relief:

I. Petitioner Willie Wimberly was denied a fair trial when the trial court denied his Sixth Amendment right to retained counsel of his choice.

II. Petitioner Willie Wimberly is entitled to a new trial as he was denied effective assistance of counsel.

III. Petitioner Willie Wimberly is entitled to be resentenced because the facts in support of some of his offense variable scores and facts in support of departures reasons were not found by the jury to be proven beyond a reasonable doubt, and because the trial court improperly departed from the guidelines and the mistake in scoring the guidelines invalidates this departure and the departure is unreasonable because it is based on incorrect guidelines and because the correct guideline range is in a completely different cell which does not overlap with the erroneous guideline range and the Court of Appeals decision is in conflict with the Supreme Court decision of Gall v. United States and Rita v. United States and denies petitioner due process.

II. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") govern this case. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

"A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

"[T]he 'unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to 'grant the writ if the state court identifies the correct governinglegal principle from [the Supreme] Court but unreasonably applies that principle to the facts of [the] petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been 'objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. "AEDPA thus imposes a 'highly deferential standard for evaluating state-court rulings,' and 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh, 521 U.S. at 333, n.7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

III. Discussion

A. The Concurrent Sentencing Doctrine

Respondent urges the Court invoke the "concurrent sentence" doctrine and not review Petitioner's claims because Petitioner is serving a sentence of life imprisonment without parole for the first-degree murder conviction he received in connection with Mr. Charles' death and for which another judge in this District already has denied him habeas relief. See Wimberly v. Warren, No. 2:18-11011, 2018 WL 6178999 (E.D. Mich. Nov. 27, 2018) (Borman, J.).

The concurrent sentence doctrine allows a federal court to "decline to hear a substantive challenge to a conviction when the sentence on the challenged conviction is being served concurrently with an equal or longer sentence on a valid conviction." Winn v. Renico, 175 F. App'x 728, 731 (6th Cir. 2006) (citing United States v. Jeter, 775 F.2d 670 (6th Cir. 1985), cert. denied 475 U.S. 1142 (1979)). The Sixth Circuit "has been ... hesitant to apply this doctrine[,]" and "has invoked it [only] when there is no possibility of adverse 'collateral consequences' if the convictions stand." Id. at 732; see also Groves v. Meko, 516 F. App'x. 507, 508 (6th Cir. 2013) (quoting Dale v. Haeberlin, 878 F.2d 930, 935 n. 3 (6th Cir. 1989)) ("The concurrent sentencing doctrine is a discretionary one, and courts 'are admittedly hesitant to apply [it].'").

Respondent fails to show the lack of collateral consequences attaching to Petitioner's first-degree murder conviction. See Pillette v. Berghuis, 408 F. App'x. 873, 886 n. 8 (6th Cir. 2010). Notably, although Petitioner's first-degree murder conviction has been affirmed on direct appeal and he has been denied habeas relief, he still has the ability to challenge that conviction in the state courts via a post-conviction motion for relief from judgment under Michigan Court Rule 6.500. For that reason, the Court declines to invoke the concurrent sentence doctrine.

B. Petitioner's Counsel of Choice Claim

In his first ground for relief, Petitioner argues that his right to counsel of choice was violated when the state court denied his motion to adjourn the trial and substitute counsel with his third retained attorney. Petitioner moved to substitute counsel and delay the proceedings three days before the first day of trial and, again, on the first day of trial.

The Michigan Court of Appeals rejected Petitioner's claim, reasoning:

In this case, defendant satisfied the first factor by asserting a constitutional right to retain counsel of his choice. But defendant did not establish a bona fide dispute with his retained counsel over trial strategy at the time of the motions, but rather expressed general dissatisfaction with defense counsel's performance and counsel's alleged lack of communication regarding the development of a general defense of innocence. Furthermore, considering that the trial proceedings were previously delayed because of a mid-trial defense request for a

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